- (1.)The present Special Leave Petition is a landlord's appeal against an order passed by the High Court of Gujarat on 30th September 2013 allowing Civil Revision Application No. 44/2013 by the tenant.
(2.)The brief facts necessary for the disposal of this SLP are as follows:
Some time in 1971 the landlady had let out the first floor portion of the suit premises to the present Respondent at the rate of Rs. 70/- per month. The standard rent was fixed by a court order in the year 1971 itself at the contractual rent of Rs. 70/- per month. On 9th March 1987 the Petitioner issued a legal notice to the Respondent-tenant stating that the tenant was in arrears of rent for more than six months i.e. on and after 1st March 1986. Various other breaches were also pointed out by the said-notice and a claim for bonafide requirement by the landlord and his family members was also made Under Section 13(1)(g) of the Bombay Rent Act. The Respondent tenant replied to the notice denying all the allegations by a letter dated 9 April 1987. This was followed by an eviction suit filed in 1987 under various grounds including arrears of rent Under Section 12(3)(a), Under Section 12(3)(b), bonafide requirement, alteration in the suit premises, and causing nuisance to the landlord.

(3.)The suit was tried by the Small Causes Court at Ahmedabad and dismissed. In appeal, the appellate bench held by a judgment dated 28th January 2013 that the ground of eviction Under Section 12(3)(b) was made out. Section 12(3)(b) of the Bombay Rent Act reads as under:
In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit if finally decided and also pays costs of me suit as directed by the Court.

The appellate bench held:

25. Point No. 1

Shri B.K. Damani learned Advocate for the Respondent argued that notice dated 09.03.1987 produced at Exh. 23 shows nothing regarding Municipal tax and no demand of tax was made by the land lord in the said notice. It is true that notice required Under Section 12(2) of the Act produced at Exh. 23, no particular amount for tax is averred in the notice by the landlord. But the notice disclosed that rent was due and Plaintiff had demanded rent at the rate of Rs. 70/- per month from 1.3.1986 till the date of issuance of the notice (date of issuance of the notice is 9.3.1987). Earlier we have held that suit notice is legal and valid.

26. It is not disputed by both the parties that amount of tax was to be borne by the tenant and not by the landlord. Therefore, when the suit filed on the ground of arrears of rent, then it attracts the provision of Section 12(3)(b) of the Act.

27. Shri Dossani learned advocate for the Respondent argued that suit attract by provision of Section 12(3)(b) of the Bombay Rent Act, 1947, Shri Dossani further argued that on receipt of the notice tenant-Defendant-Respondent did not file any application for fixation of standard rent as provided Under Section 11(3) of the Bombay Rent Act and on the first date of hearing of the suit, all amounts of rent due should be deposited by the tenant in the court and first date of hearing should be treated as the date of framing of issues. It is true that suit attracts provision of Section 12(3)(b) of the Act and in the present case on the receipt of notice [Under Section 12(2) of the Act] tenant Respondent did not file an application for fixation of standard rent of the suit premises. Therefore, tenant-Defendants-Respondent had to deposit the amount of rent due from him on the date of framing of issues. In the present case issues were framed vide Ex. 19 on 3.8.1994. that means rent from 1.3.1986 to 31.7.1994 ought to have been deposited by the Respondent tenant in the court on or before 3.8.1994. The details regarding deposit of rent is produced by the Respondent vide purshis exh. 143 in the suit and the said purshis was seen by the learned advocate for the Appellant. As per that purshis exh. 143, rent from 29.9.1987 to 16.6.1994 was deposited on different dates in the court and total comes to Rs. 6860/- and considering the rent due from the Defendant-tenant from 1.3.1986 to July, 1994, for 101 months, multiply by rent Rs. 70 per month comes to Rs. 7070/-. Means when issues were framed by the learned trial court, at the time rent due from the Respondent-tenant was Rs. 7070/- and rent was deposited Rs. 6860/-. Though the learned trial judge came to the conclusion that all rent is deposited by the tenant. The learned trial court did not discuss about the rent due on date of 13/19 of issues.

As per Section 12(3)(b) of the Act to get protection from eviction decree, tenant has to deposit all rent due on the first date of hearing i.e., date of framing of issues or on or before such other date as the court may fix. So far concerned to the later part i.e., on or before such other date as the court may fix is not relevant to the case in hand. After depositing all rent due on the first date of hearing, tenant has to keep continue to pay or tender the rent in the court and permitted increase till the suit is decided. Formation of Section 13(1)(b) of the Act, makes compulsion on the tenant to deposit the entire rent due from the tenant on or before the date of framing of issues and that also makes compulsion upon the tenant to keep continue to pay or tender the rent in the court till suit is finally decided. Means tenant has to comply those two ingredients of that section and not one and purshis produced by the tenant in the record of the suit exh. 143 disclosed that rent was due from the Defendant on the date when issues were framed.

...The tenant has not deposited all rent due on the date of framing of issues. We are not aggrieved with the learned trial court that rent was deposited by the tenant. We further observed that the learned trial court did not discuss about the point that entire rent was not deposited on the date of framing of issues. When the issues were framed, on that date, full rent was not deposited by the tenant. Therefore, Defendant-tenant cannot be protected Under Section 12(3)(b) of the Act and Plaintiff-landlord become entitled for eviction decree of the suit premises on that ground and suit filed by the Plaintiff attracts provision of Section 12(3)(b) of the Act. When any party proves the case as required under the provisions of law, then court has no alternative but to pass a necessary order in that regard. Therefore, we give answer of point No. 1 that learned trial court has erred in deciding issues of arrears of rent and we answer point No. 1 in the affirmative. In view of answer given on point No. 1, we feel that suit filed by the Respondent-Plaintiff for eviction on the ground of Section 12(3)(b) of the Bombay Rent Act, 1947 is proved by the Plaintiff and therefore, on that ground decree of eviction of the suit premises is required to be passed."